Tocqueville and Habermas

After their decisive victory over a larger Austrian force in the Battle of Leuthen (1757), the soldiers of the Prussian Army broke out spontaneously in the great Lutheran hymn, Nun danket alle Gott – “Now thank we all our God.” The Prussian King, Frederick the Great, listened in astonishment. A free thinker, friend of Voltaire, and a “benevolent” Enlightenment despot, the Great King exclaimed: Mein Gott! Welche Kraft hat die Religion – “My God! How much power religion has!”

Jűrgen Habermas

Another German free thinker and heir to the Enlightenment seems recently to have made a similarly startling discovery. I refer to the widely renowned German philosopher and public intellectual Jűrgen Habermas. For much of his career, Habermas identified himself as a staunch defender of Enlightenment rationality, the anointed successor of Immanuel Kant. His account of liberal, democratic constitutionalism assumed only secular foundations, and deliberately excluded any reference to the authority of religion. But in recent years, Habermas has veered away from that course; his stance toward religion has changed. First, he has come to accept that religion, even in the West, is not going away – at least not soon. Second, he is prepared, albeit tentatively, to recognize a role for religion to play in public, political discourse. Indeed, he even entertains the thought that “philosophy,” or secular reason, will engage in a colloquy with “theology” and revealed religion.

Reflecting this change of heart, Habermas, as guest of the Catholic Academy of Bavaria, engaged then-Cardinal Josef Ratzinger in debate in Munich in 2004. Habermas’ address has been published as “Prepolitical Foundations of the Constitutional State?” in Jűrgen Habermas, Between Naturalism and Religion: Philosophical Essays (Ciaran Cronin trans. 2012). Subsequently, in 2007, Habermas debated four Jesuit theologians, again in Munich, in 2007. His remarks on this occasion have been published as Jűrgen Habermas, An Awareness of What is Missing: Faith and Reason in a Post-Secular Age (Ciaran Cronin trans. 2010). In a short, penetrating essay entitled “Does Reason Know What It Is Missing” (New York Times, April 12, 2010), the distinguished literary theorist, public intellectual and deconstructionist Stanley Fish reviewed and criticized Habermas’ position in these debates.

Habermas’ later thoughts on religion and politics are relevant to this series for several reasons. First, it is interesting and instructive to compare the ideas of this early twenty-first century thinker with those of de Tocqueville. Tendencies in modern, democratic society whose first stirrings Tocqueville discerned have had almost two intervening centuries in which to work themselves out. In particular, secularization has become far more pervasive. But second and no less important, Habermas’ thinking sheds light on the question raised in my last posting: whether democracy can survive and flourish, despite the perceptible deepening and entrenchment of social and economic inequalities, if Western society is radically de-christianized? The bare fact that a thinker of Habermas’ repute considered it timely and important to raise the question of “prepolitical,” religious foundations for the liberal-democratic, “constitutional” State suggests that there may, indeed, be a possible need here that only religion can serve. Moreover, Tocqueville himself gave attention to the question that Habermas poses, albeit in a less systematic and focused way.

There is, I believe, a particular point of contact between Habermas and Tocqueville in the latter’s correspondence with his friend and assistant Arthur de Gobineau (whom we have briefly encountered earlier in this series). In that correspondence, Tocqueville comes closest to giving us his answer to the question whether modern Western democracy presupposes Christianity. That correspondence will be the centerpiece of my next and final posting.

Habermas on the prepolitical foundations of the constitutional State

A longstanding project of Habermas has been to provide a nonreligious, “post-metaphysical” justification of the normative foundations of constitutional democracy. He finds this type of justification in “political liberalism,” more especially in the form of “Kantian republicanism.” Prepolitical Foundations at 102. While acknowledging antecedents in Christian theology, Habermas insists that “the form of state power that remains neutral toward different worldviews ultimately derives from the profane sources of seventeenth- and eighteenth-century philosophy.” Id. Unlike Tocqueville, then, who sees the normative foundations of political liberalism as rooted in both Christian and Enlightenment thought, Habermas locates those foundations solely, or at least primarily, in the Enlightenment. (Habermas’ resistance to giving full recognition to Christianity’s historic role in shaping the modern liberal-democratic State recalls the long debate over whether the Preamble of the Draft Treaty establishing a Constitution for Europe should include a reference to God or Christianity. In the end, it did not. See Srdjan Cvijic and Lorenzo Zucca, Does the European Constitution need Christian Values?, 24 Oxford Journal of Legal Studies 739 (2004) (discussing J.H.H. Weiler, Un’ Europa Cristiana: un saggio explorativo (2002))).

The core of Habermas’ justificatory strategy is to base the legitimacy of the decision-making of the liberal, democratic state on an open, inclusive process of public communication, argument and reflection in which citizens engage on equal terms.

The human capacity for rational decision-making would be harnessed to and perfected by this process of public conversation and discourse, from which fully and fairly deliberated outcomes would finally emerge. Citizens would give their free assent to these collective, public outcomes as, in essence, the product of their own lawmaking, just as, in their personal capacities, they will legislate for themselves, assenting to and acting upon the outcomes of the exercise of purely individual freedom and rationality. This process of public discourse would not presuppose, nor be circumscribed by, any antecedent ideological or religious commitments. In providing a public sphere in which opinion could be formulated, tested, criticized, defended, improved upon and adopted or rejected, the State would take no side in deciding among the truth claims of alternative worldviews, including the comprehensive visions of human life upheld by the various religions.

One major problem with this justificatory model, as Habermas recognizes, is that it creates a motivational deficit. The virtues that are needed to sustain the process of public discourse are not necessarily supplied by the mere opportunity to engage in and make use of that process. The democratic process in and of itself may not nurture the “republican ethos” on which the process critically depends. Habermas explains how this motivational deficit may arise:

Citizens as co-legislators are supposed to make active use of their communication and participation rights, which means using them not only in their enlightened self-interest but also with a view to promoting the common good. This demands a more costly form of motivation that cannot be legally exacted. A duty to vote would be as alien to a constitutional democracy as legally prescribed solidarity. The willingness to take responsibility if need be for anonymous fellow-citizens who remain strangers to us and to make sacrifices in the common interest can only be requested of the citizens of a liberal polity. Hence, political virtues are essential for the survival of democracy even though they are “levied” in small change. They are a matter of socialization and habituation into the principles and attitudes of a liberal political culture. Citizenship is “embedded” in a civil society that is nourished by spontaneous and, if you will, “prepolitical” sources.

Id. at 105.

Tocqueville recognized the potential for similar problems in American democracy. He identified the relevant risks to the republican ethos as “individualism” (the depoliticization and consequent privatization of ordinary life) and “materialism” (the overriding preoccupation with private gain and personal consumption). See Democracy in America 780-83 (Bevan trans.) (summarizing Tocqueville’s views on how “individualism” and “the growing love of prosperity and the shifting nature of property” tend to lead democratic societies toward centralization or even despotism). See also Jean-Claude Lamberti, Tocqueville and the Two Democracies 168-75 (Arthur Goldhammer trans. 1989) (on Tocqueville’s conception of “individualism”).

In still simpler terms, the problems are those of limited altruism and fellow-feeling; little solidarity with strangers, even one’s own countrymen, and little concern for the common good; and a prevailing apathy or indifference to public affairs. A cure might be found for these conditions if the population could be motivated by a compelling vision of a common future (as in revolutionary situations); by patriotism or national feeling (as in wartime); or by religion (emphasizing self-sacrifice and the love of others). But, for Habermas, liberal democracy cannot avail itself of any of those cures without compromising the “neutrality” that lies at its core. Hence the motivational deficit in the constitutional State.

Nonetheless, Habermas seems to think that “the medium of politics itself” can sustain the republican ethos even without the benefit of “prepolitical anchors.” Id. at 106. “Constitutional patriotism,” as distinct from more traditional and less legalistic types of patriotism, can provide sufficient motivation for political engagement, provided it is “woven into the more finely spun web of cultural values,” as he thinks has happened in the Federal Republic of post-War Germany. Id. What concerns him more is that “the politically uncontrolled dynamics of the global economy and global society” threaten the bonds of civic unity in Western democracies:

An uncontrolled modernization of society as a whole would certainly corrode democratic bonds and undermine the form of solidarity on which the democratic state depends even though it cannot enforce it. Then [a particular] constellation . . . would transpire, namely, the transformation of the citizens of prosperous and peaceful liberal societies into isolated, self-interested monads who use their individual liberties exclusively against one another like weapons.

Id. at 107.

It is this problem – that “markets and administrative power are displacing social solidarity . . . from ever more domains of social life” – that leads Habermas to consider the possibility that religion may be useful to the secular liberal-democratic State. “[I]t is in the interest of the constitutional state to conserve all cultural sources that nurture citizens’ solidarity and their normative awareness.” Id. at 111. Christianity is one of these “cultural sources” that Western democracies ought to attempt to “conserve.”

But what are the terms of this understanding between religion and the State? On the side of religion, this order will involve continued renunciation of any “claim to a monopoly on interpretation and to shape life as a whole”: religion must acknowledge the secularization of science; the independence of State power from the churches; and the diversity of religious opinion. Moreover, religious acceptance of these conditions must not be a matter of “a cognitively undemanding conformity . . . to the imposed laws of secular society,” but instead be “connected with the ethos of the [religious] community from within.” Id. at 112. On the other side, the secular State must permit religions “the opportunity to exercise influence of their own on society as a whole through the public political arena.” Id. However, religious communities must not assume that their ability to influence public policy democratically is unlimited. “Admittedly, the burdens of tolerance are not shared equally by believers and unbelievers, as is shown by more or less liberal abortion regimes.” Id. Other “burdens of tolerance” that fall unequally on religious and secular sides are not specified.

Criticism of Habermas

It should be plain, as both Habermas’ Jesuit interlocutors in 2007 and Stanley Fish noted, that his conception of religion’s role in the modern secular State is fundamentally instrumentalist. Religion is (grudgingly) permitted a place in democratic decision-making, but only for the purpose of overcoming a motivational deficit that arises from the liberal-democratic State’s conception of itself – specifically, its professed neutrality as between different visions of the human good. But if the constitutional State really is neutral – if there is no external standpoint from which it can judge the outcomes of its own internal process of public deliberation – then why should one criticize (as Habermas does) the outcomes that market forces and economic globalization threaten to bring about, at least if these outcomes are democratically ratified? Perhaps he would answer that these forces prevent democratic deliberation (which normally takes place only within a single nation or political community) from doing its work. But then the question becomes, Why should we prefer the outcomes brought about by democratic deliberation to those brought about by markets? An answer to that question would likely depend on (controvertible) assumptions about the human good, such as the assumption that a degree of participation in free and open political deliberation among equal citizens is a necessary component of a good human life, or that submission to outcomes driven by impersonal market forces alone is demeaning to human dignity, even if those outcomes are sanctioned by interest-group politics. But if so, does not the defense of the liberal-democratic State ultimately depend on advancing some substantive vision of the human good?

Furthermore, if the liberal-democratic State is truly neutral as between worldviews, then why should the “burdens of tolerance” fall unequally heavily on religious communities? Is that not to privilege the secular worldview and non-religious ways of life? Or is religion fairly subjected to unequal burdens because it holds up a vision of human life as a whole – because it is “totalizing”? But cannot the same be said of at least some “secular” worldviews as well? Is not the deep ecology movement “totalizing”? And yet, would Habermas argue that that movement should be required to bear an unequal burden that limited its ability to participate fully in public discourse and policy-making?

Consider also Habermas’ cryptic and passing reference to the abortion controversy as a matter of public decision-making as to which religion’s influence should be limited. Is he saying that objections to legalized abortion can only be “religious” in nature and that, if so, they cannot be codified into the law of a pluralist and tolerant society? If so, how genuinely free and open is the process of democratic deliberation that he exalts? Must that process refuse to accommodate the prophetic side of religion, which historically has spoken out against great evils that the State has committed or fostered? And what if the objections to legalized abortion flow, not just from “irrational” or “nonrational” religious beliefs, but from an improved scientific understanding of the nature and capabilities of unborn human life?

In fact, the history of the abortion controversy illuminates a grave weakness in Habermas’ communications-based justification of liberal democracy, at least if political discourse in the United States approximates to his ideal discursive model. I argued in my last posting that the sphere of democratic decision-making in American politics has severely contracted, that many of the substantive decisions in our public life are now made by or at the behest of élites, and that where democratic politics still prevail, élites set and shape the agenda. Habermas seems insufficiently aware of the power of the wealthiest and the most highly credentialed to set the terms of debate over public policy and to dominate the course of that debate. But such disproportionate power and influence subverts his model, if the model is meant to represent truly democratic decision-making. His deliberative democracy is tilted against the less wealthy, the less educated, the less articulate, the less leisured – as well as against the religious. The concerns that are most pressing to them will appear less often as topics of national debate, and when they do appear, the ability of these groups to prevail is limited. Elites, moreover, deploy their power nakedly and unapologetically to take some issues off the public agenda – and in the United States, abortion is one of those issues.

From Roe v. Wade (1973) until the present, the Supreme Court has routinely refused to reflect public and legislative attitudes toward abortion. That refusal extends, not just to the existence of an abortion right in itself (on which public opinion has oscillated and still oscillates), but also on whether abortion should be legal throughout pregnancy or only for a more limited period; whether parents should be consulted in the case of a minor child’s planned abortion, or be empowered to refuse consent to it; whether the husband of a woman planning an abortion has a right to be notified or to withhold consent, and if so in what circumstances; what procedures and instruments may be used; how much disclosure of an abortion’s risks and consequences may be required in advance of an operation; how long a waiting period to absorb any mandatory disclosures may be imposed; and so on. The entire American legal régime of abortion has been made up out of whole cloth, with scarce regard for the wishes of popular majorities or their elected representatives, on the basis of utterly spurious claims about “constitutional” law, by a judicial élite at the behest of a dominant élite opinion.

So extreme is our Judiciary’s bias against against democratic and political intervention in the abortion controversy that even an Act of Congress to prohibit a particularly gruesome procedure used in late-term abortions was sustained by a bare majority of one Justice’s vote. See Gonzales v. Carhart (2007). The American College of Obstetricians and Gynecologists promptly issued a statement after the case came down, denouncing the decision as “shameful and incomprehensible.” Thus do our professional and credentialed elites react should the Court dare to reject their view of public policy in favor of that of the nation’s elected government. See ACOG Statement on US Supreme Court Decision Upholding the Partial-Birth Abortion Ban Act of 2003 (April 18, 2007).

Habermas’ justification of constitutional democracy would be far more plausible were it not so lacking in the sociological realism that would enable him to grasp the distorting effects of élite preferences. Moreover, his proposed restrictions on the liberty of religious communities to participate on equal terms in public policy debates would mute their prophetic voices in defense of innocent and vulnerable unborn lives who have few other defenders. Yet it is as true of the modern constitutional State as it was of Biblical Israel that prophecy, the “charisma without power,” is indispensable, however much it may threaten “power without charisma.” Michael Walzer, In God’s Shadow: Politics in the Hebrew Bible 82 (2012).

Does democracy need “prepolitical foundations”?

Let us return to the question we posed at the beginning: can Western democracy survive and flourish in a radically de-christianized society? Reading Habermas, we may reasonably conclude that he thinks that the answer is No. The vitality of the “constitutional state” seems to depend, for him, on forces that will bind citizens in closer civic and social solidarity but that the constitutional state cannot provide out of its own internal resources. True, this may be at most a passing and contingent need. True also, the need is more keenly felt because of the destructive effect on social solidarity of “uncontrolled” globalized markets. And even if the State is to draw on “external” forces such as religion to repair the motivational deficit that threatens its liberal-democratic politics, the assistance will only be accepted if religious communities agree to stringent terms in consideration for the limited participation in public life that the State allows them. Nonetheless, Habermas does seem to think that the modern, Western liberal-democratic State does still depend, for the provision of the political virtues essential to its own well-being, on religion, and therefore, in effect, on Christianity. Coming from a thinker like Habermas, that is a remarkable concession indeed.